The Blurred Protection for the Feel Or Groove of a Song Under Copyright Law: Examining the Implications of Williams V

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The Blurred Protection for the Feel Or Groove of a Song Under Copyright Law: Examining the Implications of Williams V Touro Law Review Volume 35 Number 2 Article 6 2019 The Blurred Protection for the Feel or Groove of a Song Under Copyright Law: Examining the Implications of Williams v. Gaye on Creativity in Music Olivia Lattanza Touro Law Center Follow this and additional works at: https://digitalcommons.tourolaw.edu/lawreview Part of the Intellectual Property Law Commons Recommended Citation Lattanza, Olivia (2019) "The Blurred Protection for the Feel or Groove of a Song Under Copyright Law: Examining the Implications of Williams v. Gaye on Creativity in Music," Touro Law Review: Vol. 35 : No. 2 , Article 6. Available at: https://digitalcommons.tourolaw.edu/lawreview/vol35/iss2/6 This Article is brought to you for free and open access by Digital Commons @ Touro Law Center. It has been accepted for inclusion in Touro Law Review by an authorized editor of Digital Commons @ Touro Law Center. For more information, please contact [email protected]. Lattanza: The Blurred Protection THE BLURRED PROTECTION FOR THE FEEL OR GROOVE OF A SONG UNDER COPYRIGHT LAW: EXAMINING THE IMPLICATIONS OF WILLIAMS V. GAYE ON CREATIVITY IN MUSIC Olivia Lattanza* I. INTRODUCTION The notion that “[a]ll music shares inspiration from prior musical works”1 creates a tension in music copyright infringement cases because the distinction between inspiration and copying of another musician’s work is often blurred. In Williams v. Gaye,2 the Ninth Circuit largely affirmed the judgment of the district court entered after the jury verdict finding that Pharrell Williams’ and Robin Thicke’s (“Thicke Parties”)3 hit “Blurred Lines” infringed Marvin Gaye’s song “Got to Give It Up.”4 Although the Ninth Circuit’s decision turned on procedural grounds, namely the court’s deferential * Touro College Jacob D. Fuchsberg Law Center, J.D. Candidate 2020; Boston College, B.A. in Psychology, minor in Music, 2017. I would like to give a special thanks to my Mom, Dad, and sister, Brittany, for their unconditional love and support in everything that I do. I appreciate their devotion in always being there for me not only as my family, but as my best friends. I would also like to thank my Nana and Uncle Don for their love and enthusiasm, and my Papa, who I know is excitedly watching down on me. Next, thank you to Editor-in-Chief, Michael Morales, and Notes Editor, Thomas Narducci, for their continued guidance and encouragement throughout the writing and editing process. Lastly, many thanks to my faculty advisor, Professor Rena Seplowitz, for introducing this Note topic to me, as it connects my passion for music and the law. Professor Seplowitz’s assistance in providing extensive feedback, along with her unwavering dedication as both a faculty advisor and a professor, is truly invaluable. 1 Brief of Amici Curiae 212 Songwriters, Composers, Musicians, and Producers in Support of Appellants at 2, Williams v. Gaye, 885 F.3d 1150 (9th Cir. 2018) (CA No. 15-56880). 2 885 F.3d 1150 (9th Cir. 2018). 3 The Ninth Circuit uses “Thicke Parties” to represent Pharrell Williams, Robin Thicke, Clifford Harris, Jr., and More Water from Nazareth Publishing, Inc. Id. at 1159. For this Note, “Thicke Parties” will specifically focus on Williams and Thicke. 4 Williams, 885 F.3d at 1183. 723 Published by Digital Commons @ Touro Law Center, 2019 1 Touro Law Review, Vol. 35 [2019], No. 2, Art. 6 724 TOURO LAW REVIEW Vol. 35 review of the jury’s decision,5 this case does not exemplify a straightforward application of copyright law for several reasons. While the 2013 hit “Blurred Lines” is subject to the protections under the Copyright Act of 1976, Gaye’s song, which was composed prior to January 1, 1978, is protected under the Copyright Act of 1909.6 Specifically, Marvin Gaye (“Gaye”) recorded “Got to Give It Up” in 1976, but he did not notate the deposit copy,7 as he neither wrote nor “fluently read sheet music.”8 Instead, Jobete Music Company, Inc. registered “Got to Give It Up” in 1977 with the Copyright Office by depositing sheet music of a transcribed version of Gaye’s recorded song.9 After Gaye’s death, Frankie Christian Gaye, Nona Marvisa Gaye, and Marvin Gaye III (“Gaye Parties”) inherited the copyright in Gaye’s song.10 Notably, the difference in copyright protection under each act is central in determining which aspects of the song are protected.11 While the actual sound recording of “Blurred Lines” is protected under the 1976 Act, the only protection of “Got to Give It Up” under the 1909 Act is in the musical composition.12 As a result, the district court excluded the sound recordings of both songs because sound recordings are not protected under the 1909 Act.13 This meant that the jury did not compare the recorded versions of both songs, but only compared the “musical compositions” of 5 Id. at 1182. 6 Id. at 1165; see Dolman v. Agee, 157 F.3d 708, 712 n.1 (9th Cir. 1998) (“The 1909 Act is the applicable law in cases in which creation and publication of a work occurred before January 1, 1978, the effective date of the 1976 Act.”). 7 A deposit copy is a copy of the copyright holder’s work that is sent to the Copyright Office as part of the application for registration. For a musical work, the notation of a deposit copy is the process of writing the musical elements and lyrics of a song on the sheet music. The deposit copy, or the sheet music of the song, is then sent to the Copyright Office as part of the application for copyright registration. Here, Gaye did not notate the deposit copy himself. This means that he did not personally write or transcribe the notes, lyrics, and other musical elements of “Got to Give It Up” on the sheet music that was sent to the Copyright Office for registration. 8 Williams, 885 F.3d at 1160. 9 Id. 10 Id. Gaye’s children inherited their father’s copyright in “Got to Give It Up” because copyrights, like other personal property, can be inherited when the copyright owner dies. 11 Beth Hutchens, How Sweet it is to be Sued by You (for Copyright Infringement), IPWATCHDOG (Feb. 19, 2015), http://www.ipwatchdog.com/2015/02/19/how- sweet-it-is-to-be-sued-by-you-for-copyright-infringement/id=54955. 12 Id. 13 Williams, 885 F.3d at 1165. For an explanation of the protection of sound recordings under the 1976 Act, see Part II.A. https://digitalcommons.tourolaw.edu/lawreview/vol35/iss2/6 2 Lattanza: The Blurred Protection 2019 THE BLURRED PROTECTION 725 elements extracted by the experts.14 The lack of similarities between the notated musical elements on the written compositions suggests that the songs are not substantially similar under the 1909 Act.15 In identifying the musical features present in both songs, the Gayes’ expert relied on elements that are not individually protectable.16 However, if the two songs were evaluated under the 1976 Act, there may be a stronger argument that the songs are substantially similar.17 Specifically, the sound recordings represent similar stylistic and sonic choices, including “the male falsetto and the use of a cowbell.”18 However, as this case is governed under the 1909 Act, the similarities between the sound recordings are irrelevant.19 Most importantly, the similarities between the songs are not within the melody, lyrics, or harmony, but rather in the overall sound, groove, and vibe.20 As the similarity in groove is not readily identifiable by looking at the musical compositions, the jury most likely found similarities based on the “mash-up” recording of the songs, which was inappropriately admitted because it contained unprotectable elements.21 While the actual sound recordings would be the best source for evaluating the similarity in groove, the jurors were most likely influenced by the Gaye Parties’ expert musicologists in 14 David Post, Blurred Lines and Copyright Infringement, WASH. POST (Mar. 12, 2015), https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/03/12/blurred-lines-and- copyright-infringement/?noredirect=on&utm_term=.128eb87d3b5. 15 See id. (“That the experts found similarities that are not apparent from simply listening to the two recordings should be . entirely irrelevant to the case.”). 16 Williams, 885 F.3d at 1187 (Nguyen, J., dissenting). 17 See Tim Wu, Why the “Blurred Lines” Copyright Verdict Should Be Thrown Out, NEW YORKER (Mar. 12, 2015), https://www.newyorker.com/culture/culture-desk/why-the-blurred- lines-copyright-verdict-should-be-thrown-out. If the Gaye family had a broader copyright under the 1976 Act, the family might have a stronger argument in having ownership of their father’s “particularly distinctive style choices.” Id. 18 Id. In my opinion, while both songs used the cowbell and male falsetto voice, this does not indicate that the district court’s decision was correct. In fact, the use of these sonic elements does not suggest that the similarities between the songs extended beyond the groove and feel. Instead, it is possible that Williams and Thicke used the cowbell and falsetto voice for the main purpose of evoking a vibe similar to Gaye’s. 19 See id. (explaining that the copyrights in the composition and the sound recording are distinct). 20 Post, supra note 14. 21 For an explanation of “mash-ups” in this case, see infra note 159 and accompanying text. At trial, the jury heard “three audio-engineered ‘mash-ups’” of the songs prepared by the Gaye Parties’ experts “to show the melodic and harmonic compatibility” of both songs. On the other hand, the Thicke Parties’ expert “prepared and played a sound recording containing her rendition of the deposit copy of ‘Got To Give It Up.’” Williams, 885 F.3d at 1162.
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